The Progressive Farmer Co.

376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oxmoor Press, a subsidiary of the Progressive Farmer Company and International Brotherhood of Electrical Workers, Local No. 136. Case 10-CA-9985 November 15, 1973 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On June 20, 1973, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Oxmoor Press, a Subsidiary of the Progressive Farmer Company, Birmingham, Alabama, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: Pur- suant to a charge filed on February 12, 1973, by International Brotherhood of Electrical Workers Local No. 136, hereinafter referred to as the Union, the complaint issued on April 10, 1973, alleging that Respondent on or about January 25, 1973, refused and has since continued to refuse to sign a collective-bargaining agreement to which it had previously orally agreed, thereby violating Section 8(a)(5) and (1) of the Act. Respondent in its answer denies the commission of any unfair labor practices. A hearing was held before me in Birmingham, Alabama, on May 8, 1973. At the conclusion of the hearing the parties waived oral argument. Briefs have been filed by the General Counsel and Respondent. The sole issue in this case is whether in negotiations for renewal of a collective-bargaining agreement Respondent agreed to continuation of a so-called "most favored nations" clause and thereafter refused to execute a collective-bargaining agreement- containing that clause. The facts are essentially undisputed. Upon the entire record in this case and from my observation of the witnesses and their demeanor I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent has its office and place of business at Homewood, Alabama, where it is engaged in the printing and publishing business. During the past calendar year, a representative period, it sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Alabama. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. `III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union's Representative Status and the History of Past Negotiations In August 1962, after an election the Union was certified as the representative of a unit of Respondent's mainte- nance employees. Since then the Union and Respondent negotiated and executed a series of collective-bargaining agreements, the most recent of which was executed on January 19, 1972. During that period there were no strikes, grievances were settled without the necessity of arbitration, and an amicable relationship existed between the parties. The negotiations for the 1972 contract took place during what was commonly referred to as Phase II of the Federal Economic Stabilization Program which became effective during the latter part of 1971. In the January 1972 agreement the Union agreed to a wage increase within the guidelines established as part of that program but asked for and gained a "most favored nations" clause as part of the wage settlement. That clause provided: If there is any settlement between the Company and any other craft union (not including the Associate Workers) after this date (January 19th, 1972) and during the life of this Agreement, which exceeds both 5.5% and 25.9e per hour in wages, the excess over 5.5% shall be made available to this bargaining unit effective at the same date as is effective to the other craft and after approval by the Economic Stabilization Board. The 1972 agreement by its terms was effective from January 7, 1972, through January 6, 1973, with provision for reopening for revision or modification within 60 days of its expiration date. B. The Negotiations for a Renewal Agreement On November 29, 1972, the Union sent Respondent a notice of desired changes in the January 7, 1972, 207 NLRB No. 60 OXMOOR PRESS 377 agreement. Among the changes listed was a substantial wage increase. No mention was made of the most favored nations clause. The parties first met to negotiate on December 15, 1972. They discussed the Union's proposed changes, and the Union added a request for a severance pay clause to its list. No agreements were reached at that time." The parties next met on January 4, 1973. Respondent presented the Union with a counterproposal which took the form of a reproduction of certain pages of the expiring agreement on which were superimposed changes which Respondent sought in provisions which appeared on those pages. With respect to wages, 'Respondent counterpro- posed an increase in the journeyman's rate of 27 cents an hour effective January 7, 1973, and 28 cents an hour effective January 7, 1974. These increases amounted to slightly less than 5.5 percent increases for each year. Respondent also proposed deletion of the most favored nations clause. After Respondent presented and explained its counterproposal, the union committee caucused and developed an answering proposal of its own in- which it accepted some, but not all, of Respondent's counterpropo- sals. The Union proposed some additional economic benefits and a new journeyman classification for machin- ists and electricians at a rate of 14 cents an hour above the rates proposed by Respondent for the existingjourneyman classification. The union proposal incorporated the re- mainder of Respondent's wage proposal, including dele- tion of the most favored nations clause. ' The Union presented its proposal to Respondent orally as a package proposal for acceptance or rejection in its entirety. Respondent rejected it. On January 10, 1973, the parties met again for negotia- tions. At the outset Respondent presented the union committee with an additional counterproposal with respect to severance pay. Respondent's earlier counterproposal had not been withdrawn and apparently also,remained on the table. The union committee caucused to consider Respondent's proposals and again returned' with a new further proposal: This proposal which was written in outline form accepted Respondent's proposal as to increases in hourly rates, with minor modification,2 and some of Respondent's other proposals. However, unlike the January 4 union proposal, its January 10 proposal was silent as to the most favored nations clause and did not provide for its deletion from the contract. The union negotiators read the proposal and presented the written outline to Respondent's representatives. Afterlsome further discussion, Respondent's negotiators caucused and re- turned to inform the union committee that they would accept this proposal. During the discussion of this proposal there was no mention of the most favored nations clause, and it appears that the most favored nations clause was not i At the outset of the meeting, the parties first discussed a pending grievance which arose under the most favored nations clause of the expiring agreement. The grievance was not resolved, and the parties agreed to defer its consideration and to proceed with negotiations. Insofar as appears, this grievance was not discussed further during the period of the negotiations, and there is no indication that its consideration or resolution has any bearing on the issue in this case. 2 It proposed an additional 10th of a cent increase for the first year to round the hourly rate out to the nearest cent and proposed an additional I- mentioned in discussions after the January 4 union proposal was presented to Respondent .3 In accord with the practice in other years, when it appeared that an agreement had been reached on January 10, Respondent's negotiators told the union committee that they would prepare a draft agreement incorporating the changes that had been agreed upon and would present it to the Union for signature. A few days later Respondent furnished a copy of the draft of the new agreement to union committeemen working in its plant. In proofreading the draft the committeemen became aware that the most favored nations clause did not appear in it. They so informed Union Business Manager Cockrell who advised them to inform Respondent's management that deletion of the most favored nations clause had not been agreed upon. After committee members reported back to Cockrell that management believed that there had been an agreement to delete the clause, a meeting was held in late January between the two negotiating committees at which both adhered to their respective positions as to the inclusion of the most favored nations clause in the renewal agreement. At no time did the Union propose any change in the wording of the most favored nations clause. The dispute was not resolved. The draft agreement` prepared by Respondent contained one other change from the earlier agreement which had not been discussed or specifically agreed to in the Union's January 10 proposal. The expiring agreement provided for a holiday on the last Friday in May or Memorial Day at Respondent's option. In its January 4 counterproposal, Respondent had proposed that this holiday be specified as Memorial Day in the agreement. The draft agreement prepared by Respondent reflects this change. The Union raised no objection to inclusion of that change in the draft at the January 25 meeting, and apparently acquiesced to it. There have been no further negotiations and the contract has not been signed. Respondent has put into effect all of the negotiated changes called for by the renewal agree- ment, but continues to take the position that it is not obligated to sign an agreement containing the most favored nations clause. C. Concluding Findings The General Counsel contends that by accepting the Union's January 10 proposal, Respondent agreed to renew the 1972 agreement, including the most favored nations clause, with only those changes specified in the January 10 proposal. Respondent contends to the contrary that the parties reached an agreement to delete the most favored nations clause or in the alternative that there was no agreement at all. The facts show that the negotiations were for modifica- tion of the 1972 agreement and not for an entirely new cent increase for the second year. The proposal for the first year was still fractionally less than 5.5 percent and for the second year amounted to 5.5 percent rounded off to the nearest cent. 3 Although there is some testimony that on January 4 union negotiators may have stated their reasons for agreeing to give up the most favored nations clause as part of the package proposed on that date, I find the evidence as a whole insufficient to establish that this reason was communicated to Respondent. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement. The Union gave notice of changes it desired, and Respondent likewise indicated only desired changes in its counterproposal. If any agreement was reached, it was to renew the expiring contract with those changes to which the parties had agreed. I cannot accept the contention of Respondent that the parties agreed to delete the most favored nations clause from the agreement. True, Respondent proposed its deletion, - and the -Union on January 4 made a package proposal which included acquiescence to deletion of the clause. But when Respondent rejected the Union's propos- al, the issue remained unresolved. Whether or not the Union informed Respondent's negotiators of the reason it was willing to agree to give up the most favored nations clause if Respondent accepted the rest of its proposal, Respondent had no grounds for treating the union package as what it was not, a cluster of independent proposals from which Respondent was free to accept what it liked and reject the rest. Thus, it is simply not the case that when the Union made its January 10 proposal there had been prior agreement to delete the most favored nations clause. I find further that the conduct of the parties on January 10 gave rise to an agreement which included agreement to continue the most favored nations clause. At the outset of negotiations on January 10 all of Respondent's counterpro- posals, including its proposal to delete the most favored nations clause remained on the table. During that meeting the Union made a further comprehensive offer accepting some of Respondent's proposals, modifying others, and remaining silent as to the remainder. Unlike its January 4 proposal, the January 10 union proposal was silent as to the most favored nations clause. Without further discus- sion of that clause, Respondent accepted the Union's last proposal and both parties believed agreement was reached. Whether an agreement was reached depends not upon what was in the minds of the negotiators but upon whether their conduct manifested that an offer had been made and accepted.4 Here the offer was to continue the expiring agreement with those changes proposed by the Union. Respondent stated that it accepted that offer. If Respon- dent had reservations as to the continuation of the most favored nations clause, in the posture of the negotiations to that point, it was Respondent's obligation to give voice to its reservations and resolve the matter before manifesting its acceptance. When Respondent accepted without men- tioning the most favored nations clause, it was reasonable to construe its acceptance as agreement to renewal of the agreement with only those changes which appeared in the Union's proposal. The fact that the Union did not object to the inclusion of the change in the holiday provision in the draft agreement does not indicate a contrary result. That change was not included in the Union's proposal, but it was not a substantial change. It merely exercised at the outset of the agreement the option Respondent had previously retained to exercise during the term of the agreement to designate which of 2 days would be observed as a holiday. That the Union acquiesced to the change in the draft agreement does not indicate that the Union conceded that it had previously agreed to that or any other change which was not included in the Union's January 10 offer. Similarly the failure of the Union to propose any change in the wording of the most favored nations clause does not indicate that the Union's insistence upon its inclusion in the contract was an afterthought. On January 10, 1973, Phase II of the Economic Stabilization Program was still in effect, and the Pay Board and Price Commission estab- lished to administer Phase II were still in existence. Indeed the wage proposals made by both parties during the 1973 negotiations reflected continued adherence to the 5.5 percent wage guidelines established during Phase II. By coincidence on January 1,1, 1973, the day after the parties reached agreement, by Executive Order 11695 the Presi- dent ended Phase II controls, abolished the Pay Board and Price Commission, and instituted Phase III of the controls program. However, while this change in the regulatory framework may give rise to future questions of interpreta- tion of the most favored nations clause, it did not change the agreement reached on the -previous day. I am aware that the clause in the expiring agreement referred to the date of the 1972 agreement and to the increase given in January 1972, in terms of percentage and amount. To conform to the dates and slightly changed amounts of the 1973 and 1974 increases some revision for accuracy would have been appropriate in the 1973 agreement. It may well have been that the Union did not think of the necessity for these revisions or believed that they were automatic changes Respondent would incorporate in its draft agreement just as it revised the duration clause of the agreement and drafted a reopener in article XI without any prior submission of contract language by the Union. But even if the most favored nations clause were not redrafted to reflect the changed dates and amounts (not percentage which remained the same), its inclusion in - the new agreement without change, in the light of the history of the clause, was sufficiently definite to render it susceptible to interpretation and meaningful as a contract term.5 I find the failure of the Union to Propose a change in the wording of the most favored nations clause is not indicative that the Union had acquiesced to its deletion from the agreement and revived it after Respondent's draft agreement was presented to it as an afterthought. In sum, I find that when Respondent accepted the Union's January 10 proposal, it agreed to renew all the terms of the expiring agreement, including the most favored nations clause, with those changes set forth in the Union's January 10 proposal.6 While it does not appear that the Union ever presented Respondent a draft contract containing the most favored nations clause, in the January 25 meeting Respondent made it clear that it would not sign an agreement containing that clause. Accordingly, it would have been futile for the Union to have prepared such a draft contract and to have presented it to Respondent for signature. I find that Respondent's tender of the draft omitting the most favored nations clause and its statement of position to the 4 Williston on Contracts, Third Edition, §§ 22, 66. Respondent. Each of them involves facts clearly distinguishable from those s See Williston, supra § 37. in this case. s In reaching this conclusion I have considered the cases cited by OXMOOR PRESS 379 Union on January 25 were tantamount to a refusal to sign an agreement containing all the terms and conditions agreed upon on January 10, 1973, contrary to Respon- dent's obligation under Section 8(d) of the Act. According- ly, I find that Respondent by this conduct refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act which it had previously agreed during, contract negotia- tions, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(aX5) and (1) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: IV. TILE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent violated Section 8(a)(5) and (1) of the Act I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent violated its obligation under the Act by refusing,to sign an agreement containing the most favored nations clause, I shall also recommend that Respondent be ordered upon request to sign such an agreement, to comply retroactively to its effective date with its terms, and to make whole the employees for losses, if any, which they may have suffered by Respondent's refusal to sign such an agreement in accordance with the formulae set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Company, 138 NLRB 716. CONCLUSIONS OF LAW 1. Oxmoor Press, a subsidiary of the Progressive Farmer Company, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local No. 136, is a labor organization within the meaning of Section 2(5) of the Act. 3. All maintenance employees employed by Respon- dent at its Homewood, Alabama, plant, excluding all other employees, custodial employees, office clerical employees, guards, working foremen of the maintenance department and all other supervisors as defined in the Act. constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since August 10, 1962, the Union has been and now is the exclusive representative of the employees in said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 25, 1973, to sign a collective-bargaining agreement including all the terms to 7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. ORDER? Respondent, Oxmoor Press, a subsidiary of the Prog- ressive Farmer Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to sign a collective-bargaining agreement incorporating terms and conditions of employment agreed upon between Respondent and International Brotherhood of Electrical Workers, Local No. 136, on January 10, 1973, or otherwise refusing upon request to bargain collectively with said Union as the exclusive representative of the employees in the appropriate unit described in paragraph 3 in the section of this Decision entitled "Conclusions of Law" above, with respect to rates of pay, wages, hours of work, and other terms and conditions of employment. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to engage in or refrain from engaging in any or all of the activities specified in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, sign a collective-bargaining agreement containing the terms and conditions of employment agreed to between Respondent and the Union on January 10, 1973, give retroactive effect to its terms and conditions, and make its employees whole for losses, if any, they may have suffered as a result of its refusal to sign such an agreement in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, per- sonnel records, and reports and all other records necessary to analyze the amounts of backpay, if any, due under the terms of this recommended Order. (c) Post at its Homewood, Alabama, copies of business copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in 8 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, sign a contract with International Brotherhood of Electrical Workers, Local No. 136, containing the terms and conditions of employment negotiated between us on January 10, 1973. WE WILL give retroactive effect to its terms and conditions and make our employees whole for losses, if any, which they may have suffered as a result of our refusal to sign such a contract. WE WILL NOT refuse to bargain collectively with the aforementioned Union for the unit described herein with respect to rates of pay, wages, hours of work, and other terms and conditions of employment. The bargaining unit is: All maintenance employees at our Homewood, Alabama, plant, excluding all other employees, custodial employees, office clerical employees, guards, working foreman in the maintenance department and all other supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in or to refrain from engaging in any or all the activities specified in Section 7 of the Act. Dated By OXMOOR PRESS, A SUBSIDIARY OF THE PROGRESSIVE FARMER COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 2102 City Federal Building, 2026 Second Avenue North, Birmingham, Alabama 35203, Telephone 205-325-3877.